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The Importance of Order in Determining a Woman’S Status in a House- Hold with Multiple Wives

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The Importance of Order in Determining a Woman’S Status in a House- Hold with Multiple Wives The Concubine in Republican China: Social Perception and Legal Construction Lisa Tran Abstract Beginning in the late nineteenth century, the question of whether concubi- nage violated the principle of monogamy arose in legal and public debates. Late imperial views of the concubine as a minor wife continued to influ- ence popular views of the concubine in the Republic, leading many to con- demn concubinage as bigamy. Hoping to circumvent the monogamy issue, Republican jurists who wished to continue the legal tolerance of concubi- nage created the new category of household member. The dual identities of the concubine—as minor wife and household member—reflect social and legal responses to the challenge posed by the new meaning of monogamy and reflect the tensions both within and between law and society. Lisa Tran is an assistant professor at the History Department of the California State University, Fullerton. Études chinoises, vol. XXVIII (2009) Lisa Tran At the mention of the word “concubine,” an image of a hapless victim or a conniving vixen often comes to mind. For decades, these popular percep- tions of the concubine featured in literature, film and the arts have influ- enced academic scholarship. Only recently have scholars begun to look beyond the familiar stereotypes and tropes associated with concubinage and focus specifically on the concubine as a central subject of study.1 Such close investigation, particularly from the perspective of law, reveals the concubine to be both a multi-dimensional person and concept with a long and complicated history. Since its emergence as a custom among elite families in the Song dynasty, concubinage has undergone significant changes, which in turn af- fected the concubine’s identity. A concubine occupied an intermediary po- sition between main wife and domestic maid; where she stood along that continuum depended on legal prescription and social convention. Begin- ning in the Ming dynasty, the law came to recognize concubinage as a semi-legitimate form of marriage; by the Qing, the law treated a concubine as a minor wife.2 Late imperial law sanctioned concubinage and extended to the custom a certain measure of legal protection. 1 Kathryn Bernhardt, “Women and the Law: Divorce in the Republican Period,” in Kathryn Bernhardt and Philip C.C. Huang, eds., Civil Law in Qing and Republican China, Stanford: Stanford University Press, 1994, pp. 187-214; Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford: Stanford University Press, 1999; Patricia Buckley Ebrey, “Concubines in Song China,” Journal of Family History, 1986, 11.1, pp. 1-24; Patricia Buckley Ebrey, The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period, Berkeley: University of California Press, 1993; Maria Jaschok, Concubines and Bondservants: A Social History, London: Zed Books, 1988; Neil Ennis Katkov, “The Domestication of Concubinage in Imperial China,” Ph.D. dissertation, Harvard University, 1997; Sheieh Bau Hwa [Hsieh Bao-Hua], “Concubines in Chinese Society from the Fourteenth to the Seventeenth Centuries,” Ph.D. dissertation, University of Illinois at Urbana-Champaign, 1992; Ann Waltner, “Kinship Between the Lines: The Patriline, the Concubine and the Adopted Son in Late Imperial China,” in Mary Jo Maynes, Ann Waltner, Birgitte Soland and Ulrike Strasser, eds., Gender, Kinship, Power: A Comparative and Interdisciplinary History, New York: Routledge, 1996, pp. 67-78; Rubie S. Watson, “Wives, Concubines, and Maids: Servitude and Kinship in the Hong Kong Region, 1900-1940,” in Rubie S. Watson and Patricia Buckley Ebrey, eds., Marriage and Inequality in Chinese Society, Berkeley: University of California Press, 1991, pp. 231-55. 2 Bernhardt, Women and Property in China, pp. 168-78. 120 The Concubine in Republican China Developments in the nineteenth century, however, unleashed forces that would make the legal tolerance of concubinage untenable. Repeated defeats in foreign wars, especially by Japan in 1895, led many Chinese in- tellectuals to wonder whether the source of China’s weakness stemmed from the very institutions long regarded as symbols of Chinese superiority. Inspired by Western and Japanese models of modernization, Chinese re- formers sought to transform the Confucian-based systems inherited from previous dynasties. In the legal realm, this called for a revision of the Qing code, and, eventually, the creation of new legal codes. As the drive for legal reform that began in the late Qing accelerated in the Republican period, concubinage, along with the Confucian cultural universe within which it was situated, came under fire. For many, concubi- nage epitomized all that was wrong with imperial China and easily became a target of attack. Social critics often linked concubinage to prostitution, blaming both for causing moral degeneration and sapping national vigor; the abolition of concubinage—and the patriarchal system it sustained—was deemed necessary if China was to move forward. Women’s groups in par- ticular took the lead in the campaign to eliminate concubinage.3 For oppo- nents to the custom, the persistence of concubinage undermined the new legal commitment to monogamy and equality between the sexes. But what of the concubine? To many, the concubine embodied the weakness of China and was represented as a victim to be rescued. Just as China needed to lift itself out of the semi-colonial state to which almost a century of imperialist encroachment had reduced it, so too did the concu- bine need to liberate herself from the subordinate status to which centuries of patriarchal authority had relegated her. Along with other practices like footbinding and opium smoking, concubinage became a way for the intel- lectual elite to talk about the plight of the Chinese nation. However compelling the metaphor of the concubine as China, the concubine was a person, not an abstraction. Despite the denunciation of concubinage, concubines continued to exist, for Republican law proscribed concubinage in such a way as to allow for its implicit tolerance. Legislators reasoned that codified law’s silence on the concubine issue constituted an abolition of concubinage, leaving it up to judges, who found themselves 3 For a discussion of the role of women’s groups in the legal campaign against concu- binage, see Lisa Tran, “Sex and Equality in Republican China: The Debate Over the Adultery Law,” Modern China: An International Quarterly of History and Social Sci- ence, 2009, 35.2, pp. 191-223. 121 Lisa Tran confronted with concubines in their courtrooms, to come up with a way to apply the law to women whose legal status as concubines had been erased by legal fiat.4 In an environment now hostile to concubinage, how did so- ciety view the concubine? Under a new legal regime based on monogamy and equality between men and women, how did jurists recognize women who were concubines without appearing to support concubinage? During the Republic, the concubine held two distinct identities: mi- nor wife and household member. The popular perception of the concubine as minor wife reflects the persistence of late imperial views of the concu- bine well into the twentieth century. The story of the concubine as minor wife reveals that the social custom of concubinage in the Republic re- mained largely unchanged from Qing times. In contrast, the legal identity of the concubine marks a dramatic break from late imperial practice. The legal construction of the concubine as household member was created by Republican jurists to accommodate the social existence of concubines un- der a new legal order that, at least in principle, condemned concubinage. With the introduction of the new category of household member, Republi- can jurists sought to disassociate concubinage from its semi-marital conno- tations acquired during the Ming and Qing. In this way, they were able to make concubinage compatible with the legal commitment to monogamy and extend to the concubine legal rights and benefits. Together, the dual identities of the concubine as minor wife and household member reflect both a continuity with and departure from the late imperial story of concu- binage. Yet these identities were inherently at odds, with one couched in semi-marital terms and the other rejecting any association with marriage. To what extent did popular and legal conceptions of the concubine com- pete with one another? Although jurists had deliberately disavowed the late imperial conception of minor wifehood, substituting in its place the lan- guage of household membership, society continued to subscribe to the Qing conception of the concubine as minor wife. Not surprisingly, the in- troduction of a legal construct at odds with popular views resulted in the creation of a legal fiction far removed from social reality. 4 For a discussion of the implications of this on a concubine’s claims to property, see Bernhardt, Women and Property in China, pp. 178-95. 122 The Concubine in Republican China The Qing Construction of the Concubine as Minor Wife Because Qing views of the concubine as a minor wife continued to influ- ence Republican society, it is critical to first examine late imperial discur- sive constructs of the concubine. In general, Qing law differentiated di ኈ (having to do with a main wife) from shu ൊ (having to do with a minor wife) based on whether or not the Six Rites had been performed. The Six Rites encompassed the set of betrothal and marriage rituals which were to be followed in the acquisition of a main wife.5 Under Qing law, only the -٣ഞ) in accordance with the Six Rites en first woman married (xianqu ࡠ); allإ joyed status as the legal or principal wife (diqi ኈࡠ or zhengqi other women married later (houqu ৵ഞ) were considered minor wives (qie ࡟) by default.6 As Republican period legal analyst Xu Chaoyang explains: We can see that in ancient times, although [men could] marry many [women], only one woman had the qualifications of [main] wife.
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